By Grant McCool
(Reuters) - A judge ruled that a trustee may try to claw back fictitious profits only from the last two years before the epic Madoff fraud was disclosed in December 2008, a ruling likely to affect claims against hundreds of former customers of Bernard Madoff.
U.S. District Judge Jed Rakoff made a similar ruling last year when he reduced trustee Irving Picard's claims in a lawsuit against the principal owners of the New York Mets Major League Baseball team. Owners Fred Wilpon and Saul Katz agreed to settle the litigation, but it has yet to be approved by Rakoff.
In his latest opinion dated April 30, the judge threw out claims by Picard seeking to claw back six years or more of profits, as he did in the case of Wilpon and Katz, whose potential liability was reduced to $386 million from $1 billion. The opinion applies to "innocent investors" who were not accused by the trustee of knowing about the fraud, as he has with a number of sophisticated investors such as banks and funds.
The profits were deemed fictitious because consistently high returns to investors spanning decades were simply made up by Madoff and some of his employees at Bernard L. Madoff Investment Securities LLC.
The trustee said in a statement last October that if the New York Mets decision was upheld under appeal and applied to other litigation, Picard's team of lawyers could be precluded from seeking about $2.6 billion in fictitious profits and an additional $8.3 billion in principal sought from "bad faith" customers and funds that fed the Madoff firm.
A spokeswoman for Picard declined to comment on the judge's latest opinion, which the trustee can appeal.
Last month, Rakoff consolidated 341 cases and gave the defendants until June 11 to appoint lead counsel to represent them at a hearing on June 18. The judge will ultimately decide whether he or a bankruptcy court should resolve the lawsuits.
Investors' lawyer Helen Davis Chaitman, who has been critical of the trustee's methods in trying to recover up to $20 billion from disgraced financier Bernard Madoff's fraud, said the ruling was a mixed outcome.
"For those customers who didn't have any withdrawals in those last two years, it reduces their exposure. But the others are still exposed," Chaitman said.
Picard was appointed in December 2008 to recover money for victims of Madoff, a financier who ran a multibillion-dollar investment fraud over several decades, swindling investors large and small around the globe.
Madoff pleaded guilty in March 2009 to what prosecutors and the trustee have described as the biggest investment fraud in history. Madoff, 74, is serving a 150-year prison sentence.
Rakoff's opinion read in part that "if the amount transferred to the defendant exceeds the amount invested, the Trustee may recover these: net profits from that defendant to the extent that such monies were transferred to that defendant in the two years prior to Madoff Securities' filing for bankruptcy.
"Any net profits in excess of the amount transferred during the two-year period are protected from recovery by the Bankruptcy Code's statute of limitations," the opinion said.
Picard, who filed his cases in bankruptcy court, says he has recoveries and settlement agreements totaling $9.1 billion, but $6.4 billion of that is unavailable due to appeals and reserves.
About $2.3 billion is in a fund to pay back swindled customers whose claims have been allowed. So far, about $329.6 million has been distributed, according to the trustee's website http://www.madofftrustee.com/
The case is Securities Investor Protection Corporation v Bernard L. Madoff Investment Securities LLC, U.S. District Court for the Southern District of New York, No. 12-mc-0115.
(Reporting By Grant McCool; Editing by Phil Berlowitz)